Presumption of Death & Survivorship

A person may be presumed to be dead if at least seven years have passed since their disappearance. However, whether the person has died is a question of fact; therefore, it is not always necessary to wait seven years – even when that person’s body has not been found.

Having referred to a presumption of life that occurs in certain circumstances, Axon v Axon (1937) 59 CLR 395 continued:

“… The presumption of life is a deduction from probabilities and must always depend on the accompanying facts …. As time increases, the inference of survivorship may become inadmissible. After a period arbitrarily fixed at seven years, a presumption of law arises if certain conditions are fulfilled. A court must treat the life as having ended before the proceedings in which the question arises. If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communication from him or to have learnt of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead.”

Dixon J in Axon v Axon (1937) 59 CLR 395 at 405.

Background

In the Matter of Margaret Anne Braithwaite as Executor of the Estate of Mervvyn William Charles Braithwaite (Deceased) [2025] SASC 26 , the applicant, Margaret Anne Braithwaite (Margaret), wed Mervyn William Charles Braithwaite (William) on 14 February 1976. William passed away on 7 December 2009. Margaret is William’s widow, executor, and estate’s sole heir.

At his death, William was one of two registered owners as a joint tenant of real property located at 18 Maitland Road, Minlaton, CT 5820/257 (referred to as the Minlaton property). The other registered owner is Kathleen Joy Braithwaite (Kathleen), listed as William’s spouse on the original Certificate of Title.

Survivorship

When multiple individuals own a property together, the transfer of a deceased owner’s portion depends on the type of co-ownership agreement in place. This process is known as the right of survivorship.

Tenants in Common v Joint Tenants

Multiple owners possess distinct shares of the property in a tenancy in common, with each owner having the freedom to bequeath their share as they wish. Tenancy in Common lacks any right of survivorship. Therefore, when a tenant in common passes away, their share of the property is managed or transferred by their estate’s legal personal representative.

On the other hand, joint tenants own the property equally. In the event of one tenant’s death, the surviving tenant or tenants automatically inherit the deceased’s share through the right of survivorship – the deceased’s estate does not include their interest in the property. Moreover, for capital gains tax purposes, the interest held by the deceased is transferred directly to the surviving joint tenants. This transfer may qualify them for a tax exemption, especially if the property was the deceased’s primary residence.

William’s estate is modest, primarily consisting of the Minlaton property. Net funds amounting to $17,291.79 have been wholly administered except for the resolution of the Minlaton property.

William’s estate has had to maintain the Minlaton property. Margaret has borne the expenses for this maintenance and the costs of searches, legal counsel, and the current application. These expenses significantly surpass the available funds in the estate. With interest, the total now amounts to around $83,000. The anticipated value of the Minlaton property ranges from $85,000 to $100,000.

Stanley J acknowledged that carrying out additional searches for Kathleen is not cost-effective. It is time to finalise the administration of William’s estate. Margaret is requesting directions or orders from the Court to proceed.

Did Kathleen predecease William?

The Court determined that Kathleen predeceased William, and Margaret is entitled to the Minlaton property as William’s widow. Therefore, it is unnecessary to address the alternative claim that Margaret should be compensated for the maintenance costs and searches she has undertaken as executor, which have been incurred at her own expense due to her rights under William’s Will.

The Court is convinced that the presumption of Kathleen’s survival has been disproven. Margaret is entitled to a ruling stating that Kathleen did not outlive William; an order allowing her to be reimbursed for the maintenance costs of the Minlaton property, the investigations and searches she has conducted as executor, which have been at her own expense due to her entitlements from William’s will; as well as the costs associated with these proceedings.

Additionally the Court should issue orders under ss 64 and 188 of the Real Property Act 1886 (SA) to transfer the Minlaton property to Margaret as William’s estate executor and allow her the authority to sell the Minlaton property.

The matter

On 2 September 2022, Margaret filed for advice and directions under s 69 of the Administration and Probate Act 1919 (SA) requesting the Court’s orders to authorise the sale of the Minlaton property and to finalise the administration of William’s estate.

William was married to Kathleen, then identified as Kathleen Joy Margetts, on 8 February 1958. The marriage certificate lacks clarity but indicates Kathleen’s age as 30 on 8 February 1958.

Bigamous Marriage

Margaret argues that by the 1960s, there were suspicions regarding the legitimacy of Kathleen and William’s marriage, with claims that Kathleen was still married at that time. A marriage certificate reveals that Kathleen Joy Gould entered into matrimony with Frederick Wilson Margetts (Frederick) on 18 May 1953, recording Kathleen’s age as 29 at her marriage.

Margaret believes that Kathleen was arrested sometime during the 1960s, allegedly for bigamy. William never saw or heard from Kathleen after that point, nor did William’s brother, Harold. Margaret has performed extensive searches to locate Kathleen. To the best of her knowledge and endeavours, Kathleen has never shown interest in or attempted to assert any rights to the Minlaton property. She has severed her ties with William, including any associated property.

Stanley J acknowledged that if Kathleen were still allegedly married to Frederick when she married William, her marriage to William would be considered bigamous and legally ineffective. The Court was not required to decide on the legitimacy of either of the two marriages. The primary issue is who is entitled to the Minlaton property. If Kathleen or William outlived the other, the latter would become the sole owner by survivorship.

Margaret has conducted thorough searches to find Kathleen and determine if she outlived William. Those efforts have not conclusively proven whether Kathleen was still alive as of 7 December 2009. Kathleen remains untraceable.

Life expectancy

However, Stanley J believes that it seems improbable that Kathleen survived William. Kathleen was 30 years old when she had a marriage ceremony on 8 February 1958 and was 29 when marrying Frederick on 18 May 1953. Therefore, Kathleen was born as early as 1924. Consequently, if she had been alive when William passed away, she would have been between 81 and 85, depending on which marriage certificate was accurate. The Australian Bureau of Statistics indicates that life expectancy at birth for Australian females born in 1922 was 63.3 years, and for those born in 1934, it was 67.1 years.

Life expectancy in Australia has continuously increased over the past century. The evidence suggests that, on average, a female born in 1927 or early 1928 would have had a life expectancy of about 65 years. The ABS has also produced a study on life expectancy, which includes a table detailing further life expectancy at various ages. This data shows that females born later than Kathleen, specifically between 1932 and 1934, had an additional 47.2 years of life expectancy at age 25. Applying a straightforward arithmetic method of subtracting five years from 47.2 years, Kathleen’s life expectancy at 30 years would be approximately 72.2 years or less.

Thus, the evidence supports the conclusion that, generally speaking, a 30-year-old woman in 1958 could expect to live an additional 42.2 years, roughly until the year 2000, which is nine years before William’s death.

“When it is proved that a human being exists at a specified time, the proof will support the inference that he was alive at a later time to which, concerning the circumstances, it is reasonably likely that he would survive in the ordinary course of affairs. It is not a rigid presumption of law. The greater the length of time, the weaker the support for the inference. Suppose it appears that there were circumstances of danger to the life in question, such as illness, enlistment for active service or participation in a perilous enterprise. In that case, the presumption will be overturned when reasonable inquiries have been made into the man’s fate or whereabouts and without result. The presumption of life is a deduction from probabilities and must always depend on the accompanying facts.”

Axon v Axon[1937] HCA 80; 59 CLR 395 at 404-405 per Dixon J

Considering the circumstances, Stanley J cannot reasonably assume that Kathleen would have lived longer than William, given that just under 44 years passed between the last known contact with her, before 1966, and William’s death. Although no specific circumstances threatened Kathleen’s life, such as an illness, military enlistment, or engaging in a dangerous activity, it remains pertinent to the conclusion that she likely did not outlive William.

Stanley J recognised that Margaret had made extensive efforts to determine Kathleen’s fate or location, with no evidence supporting that she survived William. If Kathleen were born in 1928, she would have been 81 years old at the time of William’s death, or even older if her birth year was 1923. This analysis lends credence to the conclusion that Kathleen did not outlive William.

The decision

On the balance of probabilities, Stanley J is convinced that Kathleen died before William. Kathleen Joy Braithwaite’s (also known as Kathleen Joy Margetts and Kathleen Joy Gould) presumption of survivorship has been overturned. Her death occurred before that of Mervyn William Charles Braithwaite on 7 December 2009.

Therefore, at the time of his death, Mervyn William Charles Braithwaite was the sole proprietor of 18 Maitland Road, Minlaton, CT 5820/257. The applicant is entitled to sell 18 Maitland Road, Minlaton, CT 5820/257.

Additionally, the Applicant is entitled to reimbursement of the costs and expenses incurred as executor in maintaining the Minlaton property, enquiring to identify and locate Kathleen Joy Braithwaite, and in her costs of and incidental to these proceedings from the net proceeds of the sale of the property.

Accordingly, Stanley J issued the following directives: 

Kathleen Joy Braithwaite of Minlaton SA 5576, a registered joint tenant with Mervyn William Charles Braithwaite of Allotment 124 Filed Plan 196356 in the area called Minlaton Hundred of Minlacowie, who is the owner of the land described in Certificate of Title Register Book Volume 5820 Folio 257 (“the Minlaton land”), passed away before the death of Mervyn William Charles Braithwaite. 

As mentioned earlier, the applicant is permitted to arrange for the sale of the land. 

From the net proceeds of the sale, the Applicant is entitled to recover on an indemnity basis her costs and expenses incurred for the upkeep of the Minlaton land since the passing of Mervyn William Charles Braithwaite, her efforts to identify and locate Kathleen Joy Braithwaite, and her costs associated with these proceedings. 

Under ss 64 and 188 of the Real Property Act 1886, the Registrar General, appointed under this Act, shall be instructed to make the necessary memorials or entries in the Register Book: 

4.1 To document the death of Kathleen Joy Braithwaite as having occurred before the death of Mervyn William Charles Braithwaite, 

4.2 To transfer the ownership of the Minlaton land to the Applicant in her capacity as executor of Mervyn William Charles Braithwaite. 

This matter is certified as suitable for Senior Counsel.